The way the law works now, the Department of Children and Families has no incentive to adopt effective policies because there's no downside to using cheaper ineffective policies that, for example, allow them to select child molesters as foster parents.

The controversy at the Massachusetts Department of Children and Families remains in the headlines despite the best efforts of Gov. Deval Patrick and other public officials to put the story to rest with awkwardly calm comments about outside reviews, blah, blah, blah.

Some are calling on Patrick to fire DCF Commissioner Olga Roche, but symbolic head-rolls won't change a thing because another widget bureaucrat will take Roche's place and the sludge-flow will continue.

The problems at DCF emanate from a baseline design flaw in law that allows children in state custody (including foster care) to be abused with impunity. Here's why:

Under state law, even a child who gets raped by a foster parent with a criminal record for child molestation has no hope of winning a lawsuit unless DCF "originally causes" the abuse. In other words, someone who works at DCF would have to be a molester or a pimp.

The Legislature has for decades refused to adjust the "original causation" standard so that DCF could more easily be sued. It isn't that lawmakers hate children, it's that they're controlled by lobbyists and they love money more.

Social workers say lawsuits aren't the answer and that they're under enough pressure. But changing the law won't burden decent social workers, it will force insurance companies and policy-makers to spend a few bucks putting in place the best possible policies to protect children from harm.

The way the law works now, DCF has no incentive to adopt effective policies because there's no downside to using cheaper ineffective policies that, for example, allow them to select child molesters as foster parents.

Some advocates have turned to federal court for help because children can assert a due process right to "reasonable care and safety" when in state custody. Though there's no "original causation" rule there, the federal courts have embraced an immunity of sorts by ruling that there can be no liability unless DCF's actions "shock the conscience."

"Shock the conscience" is as ineffective as "original causation" because it requires proof that DCF officials were "deliberately" indifferent to a child's needs and that such indifference was "egregious" and "outrageous."

The meaning of "shock the conscience" was discussed in a recent federal lawsuit against DCF where the judge described the standard as an "extremely high" burden and a "virtually unscalable peak" that requires "stunning evidence." The lawsuit was rejected because even though DCF violated state law by failing to perform background checks and allowing convicted molesters to live with children in their care, it wasn't "conscious-shocking" enough to find DCF liable for the children's suffering.

The worst thing about these inadequate laws is that they reward DCF officials for turning a blind eye to abuse because the more DCF knows, the greater the chance a judge will find "original causation" and "conscience-shocking" behavior if a child dies or disappears.

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Wendy Murphy is adjunct professor of law at New England Law|Boston and a well-known television legal analyst. A former prosecutor, Murphy specializes in the representation of crime victims in civil and criminal litigation. Her first book "And Justice For Some" was published in 2007 and was released in paperback in 2013. Read more of her columns at wendymurphylaw.com.

By rewarding official blindness, the law perpetrates the very harm it purports to abhor. Scandal avoidance when kids suffer harm in institutional settings is already the politically preferred path of least resistance.

To better protect kids, the law should be changed so that DCF can be sued under a negligence standard. "Negligence" would mean DCF would be held liable not only for what they "originally cause" or "deliberately" do wrong, but also for what they "could have prevented" and "should have known about." Under a more protective negligence standard, DCF officials can't simply look the other way without increasing their liability exposure.

Good social workers have gut instincts about what's going on behind closed doors. It's time for state lawmakers and federal courts to add rocket fuel to those guts by opening the door wider to the possibility of lawsuits. It won't fix everything but the mere threat of more litigation will improve the quality of children's lives overnight – not because people who don't care about kids will suddenly give a damn, but because the risk of harm to children will, for the first time, affect the bottom lines of people who do care about money.

Wendy Murphy is adjunct professor of law at New England Law|Boston and a well-known television legal analyst. A former prosecutor, Murphy specializes in the representation of crime victims in civil and criminal litigation.